William D. Spencer
Clerk
Merit Systems Protection Board
1615 M St. NW.Washington, DC 20419
Re: Comments on Federal Register Notice
76 FR 63537 (Oct. 13, 2011)
Mandatory E Filing in Selected Board Offices
Dear Mr. Spencer:
I take this opportunity to comment on the Board’s interim rule and request for
comments.
Preliminarily, I would like to note that the Federal Register notice implies that there
was prior notice and opportunity to comment on the concept of mandatory E filing.
That is incorrect. The Federal Register notice of February 26, 2008, 73 FR 10127,
was a final rule that mentioned that:
Although not part of this final rule, the MSPB is considering proposing a rule
that would make e-filing mandatory for agencies and attorneys who represent
appellants.
The 2008 Federal Register notice did not invite further comment.
With respect to the substance of the proposal, the Board is considerably increasing
the burden upon appellants’ counsel who make their choice among faxed or mailed
filings and electronic filing and decide to use traditional nonelectronic filing methods.
Many counsel prefer nonelectronic filing for good reasons.
Nonelectronic filing provides proof of delivery through fax receipts or commercial
delivery service tracking systems, and the proof of delivery is not in the control of the
MSPB, a factor of importance to counsel who must consider the protection of their
clients in being able to timely file documents without regard to whether the Board’s
electronic system happens to be working on a particular day.
The Board has essentially imposed an irrebuttable presumption that its electronic
filing system makes no mistakes. That is a convenient fiction, illustrated in Rivera v.
SSA, 111 MSPR 581, 584 ¶ 5, 2009 MSPB 127 (2009):
The initial decision clearly indicated that the appellant’s petition for review had
to be filed by February 16, 2009. Because February 16, 2009, was a federal
holiday, the appellant actually had until February 17, 2009, in which to timely
file his petition. 5 C.F.R. § 1201.23. We reject the appellant’s assertion that he
did not receive the initial decision until February 20, 2009. Our e-filer
regulations provide that, as a registered e-filer, the appellant agreed to accept
documents through electronic service and, further, that he was required to
monitor his case activity at the Repository at e-Appeal Online to ensure that he
received all case related documents. 5 C.F.R. § 1201.14(e), (j)(3). Moreover,
our regulations provide that pleadings and Board documents served
electronically on registered e-filers are deemed received on the date of
electronic submission. 5 C.F.R. § 1201.14(m)(2). When a statute or regulation
“deems” something to have been done, the event is considered to have
occurred whether or not it actually did. See Lima v. Department of the Air
Force, 101 M.S.P.R. 64, ¶ 5 (2006). Thus, we deem the appellant to have
received the initial decision on January 12, 2009, and his petition was,
therefore, filed 5 days untimely.
The Board’s assumption is wrong. Anyone who has had the experience of not
receiving an e-mail from someone who credibly maintains that it was sent immediately
recognizes the fallacy of the Board’s position, which happens to quote no authority
other than itself. Computers, internet services, and the people who design, maintain
and operate them, make errors. No attorney wants to risk his client’s case on the
chance of a failed filing that the Board makes well-nigh impossible to excuse. A fax
receipt or a receipt from a commercial delivery service takes a moment to produce:
to overcome the Board’s presumption may take years of litigation.
The benefit of the electronic filing regulation is for the Board itself. An electronic
repository of documents is more convenient for review by attorneys in the Office of
Appeals Counsel, Board members, and their legal assistants. An electronic
repository is more convenient for the large number of MSPB administrative judges
who have flexiplace arrangements and work out of their homes.
But the Board also has to consider under the Administrative Procedure Act the public
convenience and necessity. If the public is not flocking to use the Board’s electronic
system, there may be a very good reason, such as the complexity of the system or
the additional expense in terms of hours of use by private counsel. There is absolutely
no indication in the rulemaking notice that the Board has estimated the cost in
financial terms to private counsel, who represent appellants who often are
unemployed, seeking retirement benefits that have been denied to them, and simply
do not have the funds to pay counsel for the luxury of spending additional time
scanning and electronically filing materials with the Board. If the Board is to seriously
consider mandatory electronic filing, it should conduct an objective study that
measures the cost savings to the Board and the likely expense to represented
appellants.
The Board could obtain many of the benefits sought through its mandatory electronic
filing system by requesting the cooperation of counsel in submitting to the Board
particular items that have been scanned. Prehearing submissions and petitions for
review are examples of documents that many counsel would voluntarily scan and
provide to the Board.
Another concern is related to the economics of practice by lawyers in small legal
offices involved in MSPB practice. Often lawyers are working on Board cases in
private practice by themselves. This is not the type of work that ordinarily supports,
as does commercial litigation, teams of lawyers and litigation support staff. A lawyer
who is a solo practitioner or in a very small office does not have the resources to have
someone constantly checking his or her e-mail, as opposed to reviewing routine fax
receipts or incoming mail, to determine when something important has arrived at the
office that needs the attention of the lawyer who happens to be out of the office
working on something else. If the Board is to require electronic filing, it should
recognize the realities of law practice in this particular area of the law, distinguish it
from routine practice in large law firms that are involved in commercial litigation, and
automatically exempt from the electronic filing process lawyers who are in solo
practice or in small law firms.
Finally, the Board can utilize its own employees or a contractor to scan received
documents, much the same as many agency EEO offices scan and place into
electronic format materials comprising reports of investigation on EEO complaints. It
is all a matter of where the economic burden of the task is placed. In this particular
type of practice, which already includes many appellants from obtaining counsel
because of the considerable cost involved, it is a additional disincentive to employ
counsel who must then bill clients for the time it takes to engage in mandatory
electronic filing.
Although the Board may liken its operation to a federal district court, probably the
better comparison is with its reviewing court, the United States Court of Appeals for
the Federal Circuit, which does not provide for electronic filing and yet handles
litigation documents including voluminous records of administrative proceedings and
judicial proceedings on a routine basis without imposing electronic filing requirements
on the bar.
In conclusion, while recognizing that a mandatory electronic filing system would be
of assistance to headquarters MSPB personnel and administrative judges who make
extensive use of flexiplace, it imposes an unwarranted burden upon counsel,
particular those in solo practice or in small law firms. The Board can and should use
the voluntary efforts of counsel to provide electronic copies of particular documents
and the Board can and should continue to use the time and resources available to it
through staff and dedicated equipment to create electronic records as the Board
deems necessary.
The Board’s processes and law are complex enough. Too many appellants,
represented or unrepresented, are being defaulted by reason of untimely filings. The
Board should avoid further complicating a process that has worked reasonably well
when counsel has had a choice among filing methods—a choice made by counsel out
of the best interests of their clients and with regard to the practical and economic
necessities of practice in this area of law.
Thank you for your consideration.
Yours very truly,
Peter B. Broida
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